Legal ramblings – winners and losers – the battle rages on

The plain language of the law is not always what we think it is – as homeowners continue their battle against fraudulent loans and foreclosures the Courts are coming back with their interpretation of what the legislative intent is on the “statutes”. Some of these interpretations are disappointing while others are exhilarating. Ultimately these rulings bring clarity to a myriad of issues that better define the battle lines on what IS fraudulent and wrong; and what is legal.

CCC § 2932.5 DOES NOT APPLY to Deeds of Trust

Last year, the Court of Appeals out of Los Angeles came out with a ruling in Calvo v HSBC, in which the Court determined that that CCC § 2932.5 does NOT apply to Deeds of Trust. For many of us we felt that In Bank of Italy and Monterey SP Partnership v. WL Bangham, Inc., the California Supreme Court had determined that a Deed of Trust was “nothing more than a mortgage with a power of sale” meant that the statute DID apply to Deeds of Trust.

Recently, the Court of Appeals out of San Francisco (1st District, Division 4) in Haynes v EMC, issued a ruling that supports the Calvo findings. The Court found that the plain language of 2932.5 refers to “mortgages and other encumbrances” – liens against the property, while a Deed of Trust passes “title” to a Trustee and is not a lien, therefore 2932.5 does NOT apply to Deeds of Trust. As a result of the Calvo ruling, In Re Salzar, where the Court found 2932.5 DID apply, was reversed by the appellate district court. (So stop using Salazar as a cite as it has been overturned!)

This doesn’t mean that an assignment does not have to be done, it DOES, it simply means that the Assignment does NOT have to be recorded in the land records. As a legal strategy, the failure of the foreclosing entity to record and acknowledge the Assignment of Deed of Trust is NOT a valid legal argument but HAVING an assignment is! Typically the banks do file an assignment so you can still investigate that assignment and argue the truthfulness of the assignment, but whether it was recorded or not is irrelevant. And if there is none recorded, demand a copy in discovery.

Wells Fargo Dinged $3.7 MILLION Punitive Damages

It is always nice to see a bad guy get thunked on the head. Not that $3.7m is a lot of money to Wells Fargo – but it is a message that the Courts have caught on to the unfair and deceptive business practices of Wells Fargo and their disgust is starting to show. In two cases, in Stewart and In Re Jones, the Court found that Wells Fargo systemically misapplied payments resulting in unfair charges to the debtor. Wells Fargo was commanded to correct their screwed up accounting but instead, Wells Fargo thumbed their noses at the court and failed to do so. The Court calls Wells Fargo on their deceit by stating, “Wells Fargo’s conduct was a breach of its contractual obligations to its borrowers. More importantly, when exposed, it revealed its true corporate character by denying any obligation to corrects its past transgressions and mounting a legal assault [to] ensure that it never had to.” Yep Judge, we homeowners have known how creepy Wells Fargo is for a couple of years now, glad that you have caught on. If you are doing business with Wells Fargo NOW IS THE TIME TO STOP. MOVE YOUR MONEY from this filthy company.

Property Tax Seizure Creates Problems for the BANK not the homeowner

Case: NY Fidelity v JP Morgan Chase

This is an interesting little case courtesy of Charles Cox. The homeowner failed to pay property taxes so the property was seized, the homeowner went back and paid off the taxes but during this time the lender had foreclosed on the property and sold it at a Trustee Sale – only problem is the government owned it by then. So the tax sale stripped the lender’s lien; the homeowner went back and paid off the taxes and now apparently has their home back. Crazy wacky world that we live in……

Deutsche Bank Loses in Hawaii – About damn time!

“Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary,” praises Gary Dubin. Another classic case of Deutsche claiming that it doesn’t have to follow the PSA and it is none of the homeowner’s business. This Judge gets it and stops it! Great reading for anyone fighting against the henchmen of Deutsche Bank in their fraudclosures and for anyone who had a loan originated by New Century Mortgage, allegedly sold to Morgan Stanley.